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Dickie v. State (7/27/2012) ap-2365

Dickie v. State (7/27/2012) ap-2365

                                               NOTICE 



        The text of this opinion can be corrected before the opinion is published in the 

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        errors to the attention of the Clerk of the Appellate Courts. 



                               303 K Street, Anchorage, Alaska  99501
 

                                         Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



BRUCE DICKIE,                                    ) 

                                                 )          Court of Appeals No. A-10670 

                            Appellant,           )        Trial Court No. 3AN-09-6508 CR 

                                                 ) 

             v.                                  ) 

                                                 )                  O P I N I O N 

STATE OF ALASKA,                                 ) 

                                                 ) 

                            Appellee.            ) 

                                                 )            No. 2365 - July 27, 2012 



                Appeal from the Superior Court, Third Judicial District, 

                Anchorage, Philip R. Volland, Judge. 



                Appearances:       Josie  Garton,   Assistant   Public   Defender,    and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Tamara     E.  de  Lucia,   Assistant   Attorney   General,    Office   of 

                Special    Prosecutions     and  Appeals,    Anchorage,     and  John   J. 

                Burns, Attorney General, Juneau, for the Appellee. 



                Before: Coats, Chief Judge, and Mannheimer and Bolger, 

                Judges. 



                BOLGER, Judge. 



                Bruce Dickie appeals his conviction for first-degree stalking of a family in 



Anchorage. Dickie contends that the State's evidence was legally insufficient to prove 



that his repeated contacts with the family were "nonconsensual" within the meaning of 


----------------------- Page 2-----------------------

AS 11.41.270(b)(3) - i.e., that these contacts were "initiated or continued without [the 



family's]   consent,   ...   or   ...   in   disregard   of   [the   family's]   expressed   desire   that   the 



contact[s]   be   avoided   or   discontinued."   In   particular,   Dickie   argues   that   the   State's 



evidence in this case was insufficient to prove that he knew that his contacts with the 



family were contrary to their wishes. We conclude that the State's evidence, viewed in 



the light most favorable to the jury's verdict, was sufficient to establish this element of 



the offense. 



                 Dickie   also   argues   that   the   statutory   definition   of   "nonconsensual"   is 



unconstitutionally broad unless we require the State to prove that the unwanted contacts 



were accompanied by some degree of coercion or force. For the reasons explained in this 



opinion, we reject this contention. 



                 In a separate claim, Dickie argues that the superior court committed plain 



error by failing to instruct the jury on the definition of "victim" under the stalking statute. 



Dickie contends that, without this statutory definition, the jury might have convicted him 



of stalking even though they believed Dickie's proposed defense - i.e., even though the 



jurors concluded that Dickie was not targeting the family who lived at the residence, but 



was instead making good-faith but misguided efforts to contact someone else who he 



mistakenly believed lived in that residence. 



                 We conclude that, given the instructions that the jury did receive, and given 



the   final   arguments   of   the   parties,   there   was   no   risk   that   the   jurors   misunderstood 



Dickie's proposed defense. Accordingly, the superior court's failure to give the jurors 



a more technical definition of "victim" was not plain error. 



                                                      2                                                 2365
 


----------------------- Page 3-----------------------

       Background 



              The Petersen family resided in a duplex in Anchorage. In May 2009, the 



Petersens'   eighteen-year-old   daughter   saw  Dickie  walking   around   their  house  at 



approximately 9:30 p.m., holding a bag of beer. A short time later, Dickie knocked on 



the door and asked for someone named Sherry Anson. The daughter informed Dickie 



that Sherry Anson did not live at that residence. Dickie then left. 



              About two weeks later, the Petersens found a pizza on their front porch. 



Another week later, someone left two Starbucks coffee drinks and a bag of deli food 



from Fred Meyer on the porch. At the end of May, the family left town for Memorial 



Day weekend and returned to find a can of Pringles potato chips on their porch. 



              On June 1, the Petersens observed Dickie return to the house and leave 



another bag of Fred Meyer deli food on the porch. Mr. Petersen was able to stop Dickie 



in the driveway and ask why he was leaving the food. Dickie stated that he thought his 



friend, Sherry Anson, lived at the house. Dickie said his name was Bruce, but gave a 



false last name. 



              Mr. Petersen informed Dickie that he was scaring his family and that he 



believed Dickie was stalking them. Mr. Petersen said he would call the police if Dickie 



returned to their home. Mr. Petersen wrote down Dickie's license plate number as he 



drove away. 



              On June 8, Ms. Petersen was watching a movie when she saw Dickie enter 



their yard from the woods behind their duplex. Dickie was swaying and appeared to be 



drunk. Mr. Petersen herded his family upstairs into a bedroom, while Ms. Petersen called 



911 on her cell phone. Dickie was crouched down in the yard and holding "a big, silver 



gun." He eventually got up and walked out of the yard through a wooded area. 



                                             3                                        2365
 


----------------------- Page 4-----------------------

                Anchorage   police   responded   to   the   911   dispatch   and   went   to   Dickie's 



home, a short distance from the Petersens' duplex. Dickie was slurring his speech and 



had an odor of alcohol about him. Anchorage Police Officer Jonathan Gould performed 



a field sobriety test that led him to believe Dickie was intoxicated. 



                Police found two guns and several magazines of ammunition in Dickie's 



pants. One of the guns was a Para-Ordnance that had a round of ammunition in the 



chamber and rounds of ammunition in the magazine. The second gun, a nine-millimeter 



Beretta, contained rounds in the magazine. Police also found "a very large" loaded Smith 



and Wesson revolver on Dickie's couch. Police located three other guns - a loaded .44 



Ruger handgun, a 30.06 rifle, and a Blissfield shotgun - in Dickie's bedroom. 



                Dickie was indicted on one count of third-degree misconduct involving 



            1                                           2 

weapons,  one count of first-degree stalking,  and one count of first-degree criminal 



           3 

trespass.    After the State presented its case at trial, Dickie moved for a judgment of 



acquittal on the stalking charge. Dickie argued that the State failed to prove that he 



engaged in a course of conduct that placed the Petersens in fear of death or physical 



injury. Superior Court Judge Philip R. Volland denied Dickie's motion. The jury found 



Dickie guilty of all three charges, and he now appeals. 



        Discussion 



                Dickie raises two arguments on appeal. First, Dickie argues that the court 



erred in denying his motion for judgment of acquittal because the State failed to show 



    1   AS 11.61.200(a)(7). 



    2   AS 11.41.260(a)(4). 



    3   AS 11.46.320(a)(1). 



                                                    4                                                2365 


----------------------- Page 5-----------------------

that Dickie made repeated, nonconsensual contacts with the Petersens as necessary to 



satisfy   the   stalking   statute.   Dickie   also   argues   that   the   trial   court   erred   in   failing   to 



instruct the jury on the definition of the term "victim." 



                 The trial court did not err in denying Dickie's motion for 

                judgment of acquittal. 



                 A   person   commits   the   crime   of   stalking   when   the   person   "knowingly 



engages in a course of conduct that recklessly places another person in fear of death or 

physical injury, or in fear of the death or physical injury of a family member."4 The 



statute defines the phrase "course of conduct" as "repeated acts of nonconsensual contact 

involving the victim or a family member."5 "[N]onconsensual contact" is defined as "any 



contact with another person that is initiated or continued without that person's consent, 



that is beyond the scope of the consent provided by that person, or that is in disregard of 

that   person's   expressed   desire   that   the   contact   be   avoided   or   discontinued."6    Such 



contacts include "appearing within the sight of that person"; "entering onto or remaining 



on property owned, leased, or occupied by that person"; and "placing an object on, or 

delivering an object to, property owned, leased, or occupied by that person."7 



                 Dickie argues on appeal that his conduct does not fall within the definition 



of stalking because his conduct does not meet the definition of "nonconsensual contact." 



    4   AS11.41.270(a) (defining second-degree stalking). Under AS 11.41.260(a), a person 



commits first-degree stalking if they violate the second-degree stalking statute and "at any 

time during the course of conduct constituting the offense, the defendant possessed a deadly 

weapon." 



    5   AS 11.41.270(b)(1). 



    6   AS 11.41.270(b)(3). 



    7   AS 11.41.270(b)(3)(A), (D), (G). 



                                                     5                                                2365
 


----------------------- Page 6-----------------------

Dickie argues that we should require an element of coercion or force as part of the phrase 



"without that person's consent" to address potential constitutional problems with the 



stalking statute. Because these claims raise questions of statutory interpretation, our goal 

is to determine the intent of the legislature and to implement that intent.8 



                 In  Petersen   v.   State ,   we   noted   that   the   phrase   "without   that   person's 



                                                                                                         9 

consent" appears to cover all contacts that are not expressly authorized beforehand.  But 



we noted that this broad coverage is tempered by the other elements of the statute: "To 



establish the crime of stalking, the government must prove that the defendant knowingly 



engaged in repeated acts of nonconsensual contact, the government must prove that these 



nonconsensual   contacts          placed   another     person    in  fear  of   injury   or  death,   and   the 

government must prove that the defendant acted with reckless disregard for this result."10 



Because      of   these   elements,     we   held   that   the  stalking    statutes   do   not   criminalize 



nonconsensual contacts made for "legitimate purposes, even when the defendant knows 



that    the   person    contacted      may    (or   will)   unreasonably       perceive     the   contact     as 

threatening." 11 



                 Under the facts of this case, we likewise conclude that the requirements of 



the stalking statute pass constitutional muster even if we do not require the prosecution 



to show an element of coercion or force as part of the proof that the defendant's course 



of conduct against the victim was "without that person's consent." 



    8   Boyd v. State , 210 P.3d 1229, 1231 (Alaska App. 2009). 
 



    9    930 P.2d 414, 425 (Alaska App. 1996).
 



    10  Id. at 431.
 



    11  Id .
 



                                                       6                                                  2365
 


----------------------- Page 7-----------------------

                 In the stalking statute, the legislature did not provide a statutory definition 



for the phrase "without that person's consent" or for the word "consent." The word 



consent is generally defined as "[a]greement, approval, or permission as to some act or 

purpose." 12     "Without     consent"     then   refers  to  the   lack  of  agreement,      approval,    or 



permission. 



                 Because the meaning of "without consent" appears to be clear from the 



dictionary definition, Dickie bears a heavy burden to demonstrate the legislature intended 

to adopt the meaning he advocates on appeal.13 To satisfy this burden, Dickie must show 



that the legislature enacted the statute with the intent of requiring force or coercion to 



satisfy this element of the stalking statute. 



                 Dickie   does   not   point   to   any   legislative   history   demonstrating   that   the 



legislature intended to require force or coercion where the defendant initiates contact 



without   the   victim's   consent.   Had   the   legislature   intended   to   require   an   element   of 



coercion or force, the legislature could have included a statutory definition similar to the 



statutory definitions in the sexual offense, kidnapping, custodial interference, and human 

trafficking statutes.14 The lack of a similar definition in the stalking statute appears to 



indicate that the legislature did not intend to require force or coercion as part of the 



definition of nonconsensual contact. 



                 We now turn to the evidence in this case. When we examine the sufficiency 



of   the   evidence   to   support   a   conviction,   we   view   "the   evidence   in   the   light   most 



favorable   to   the   state   and   [ask]   whether   reasonable   jurors   could   conclude   that   the 



    12  Black's Law Dictionary 323 (8th ed. 2004). 



    13  Stephan v. State, 810 P.2d 564, 566 (Alaska App. 1991). 



    14  See AS 11.41.370(3); AS 11.41.470(8). 



                                                      7                                                  2365 


----------------------- Page 8-----------------------

accused's guilt was established beyond a reasonable doubt."15 In this case, the evidence 



indicates that the first time Dickie arrived at the Petersens' residence, Dickie knocked on 



the door and asked for Sherry Anson. The daughter informed Dickie during that first 



encounter that "nobody lives here by that name." From that point forward, Dickie was 



on notice that Sherry Anson was not present at that residence and that his continuing 



contacts with the Petersens were without their consent. 



                Dickie     then   repeatedly     stopped    by  the   house    and   left  food   without 



attempting to contact the Petersens. When Mr. Petersen confronted Dickie, he gave a 



false name. Dickie's conduct suggested that he knew he did not have the Petersens' 



consent, that he possibly knew his conduct was criminal, and that he felt the need to 



operate with some degree of secrecy. Then, after Mr. Petersen told Dickie not to come 



back, Dickie returned to the Petersens' house with   a   gun. A juror could reasonably 



conclude   that   Dickie   knew   that   his   contacts   with   the   Petersens   were   without   their 



consent. 



                 The    trial  court  did   not  commit    plain   error   in  failing  to 

                instruct the jury on the definition of "victim." 



                Dickie argues on appeal that the court committed plain error in failing to 



instruct the jury on the definition of the term, "victim." Because Dickie's defense at trial 



was that he was looking for Sherry Anson, he argues that the court's failure to instruct 



the jury "permitted the jury to find that Dickie had engaged in stalking even if he did not 



target the Petersens." 



                Criminal Rule 30(a) states that a party who disagrees with a jury instruction 



must object before the jury retires to deliberate. When a litigant does not make a timely 



    15  Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994). 



                                                    8                                                 2365 


----------------------- Page 9-----------------------

objection to the court's failure to provide a jury instruction, we review the claim for plain 



       16 

error.    In the context of jury instructions, this court will only find plain error when the 



lack of an instruction "creates a high likelihood that the jury followed an erroneous 

theory[,] resulting in a miscarriage of justice."17 



                 The stalking statute defines "victim" as "a person who is the target of a 

course of conduct."18 The statutory definition of victim does not differ dramatically from 



the dictionary definition. A dictionary definition of this term includes "[o]ne who is 

harmed by or made to suffer from an act, circumstance, agency, or condition." 19 Black's 



Law Dictionary defines victim as "[a] person harmed by a crime, tort, or other wrong."20 



Because the dictionary definitions of victim do not differ significantly from the statutory 



definition, it is unlikely that the jury would have understood the term "victim" in a 



manner that differed significantly from the plain and ordinary meaning of the term. 



                 Moreover, the lack of a jury instruction defining this term did not create a 



likelihood that the jury followed an erroneous theory. The jury instructions required the 



jury to find Dickie not guilty of stalking if they concluded that Dickie was mistaken 



about   the   object   of   his   conduct.   The   jury   instructions   stated,   "If   you   find   that   the 



defendant had a reasonable mistake of fact that he was not engaging in a 'course of 



conduct' ... , then you must find him not guilty of Stalking in the First Degree." The 



     16 Heaps v. State , 30 P.3d 109, 114 (Alaska App. 2001). 
 



     17 In re Estate of McCoy , 844 P.2d 1131, 1134 (Alaska 1993). 
 



     18  AS 11.41.270(b)(4). 
 



     19  The American Heritage Dictionary of the English Language 1990 (3d ed. 1992). 
 



    20  Black's Law Dictionary 1598 (8th ed. 2004).
 



                                                      9                                                2365
 


----------------------- Page 10-----------------------

instructions also defined the term "course of conduct" as "repeated acts of nonconsensual 



contact involving the victim or a family member." 



                Based on these jury instructions, Dickie's counsel argued to the jury that 



Dickie   was   merely   mistaken   about   who   was   living   in   the   duplex.   In   response,   the 



prosecutor argued to the jury that Dickie was not mistaken about the fact that his conduct 



was directed at the Petersens. 



                We conclude that the jury was adequately instructed that they should find 



Dickie   not   guilty   of   stalking   if   they   believed   that   Dickie   was   only   looking   for   an 



acquaintance named Sherry Anson. The jury rejected this theory when they returned the 



guilty verdict. Accordingly, we conclude that the lack of an instruction on the statutory 



definition of the term "victim" did not create a likelihood   that the jury followed an 



erroneous theory. 



        Conclusion 



                We AFFIRM the superior court's judgment. 



                                                   10                                              2365
 

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